What Lawyers Do http://whatlawyersdo.com A Trial Lawyer Tracking Events that Affect the Legal Rights of Individuals and Consumers Sat, 14 Feb 2009 21:17:12 +0000 http://wordpress.com/ en hourly 1 http://www.gravatar.com/blavatar/bc144158be40a858051b4df4251b8598?s=96&d=http://s.wordpress.com/i/buttonw-com.png What Lawyers Do http://whatlawyersdo.com Arbitration Unfairness http://whatlawyersdo.com/2009/02/14/arbitration-unfairness/ http://whatlawyersdo.com/2009/02/14/arbitration-unfairness/#comments Sat, 14 Feb 2009 21:17:12 +0000 Eric http://whatlawyersdo.com/?p=790 ]]>

Check out a recent piece published in The Nation by Kia Franklin, the author of the Tort Deform blog and a strong voice in support of our civil justice system, who has also been kind enough in the past to cross-post an article on that blog from Yours Truly.

Kia focuses the spotlight on the continuing problem of arbitration clauses which impede the ability of workers and consumers to have access to justice.

Keep on keepin’ on, Kia!

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Excellent Post About the Weakened Government Oversight of the Financial System http://whatlawyersdo.com/2009/01/30/excellent-post-about-the-weakened-government-oversight-of-the-financial-system/ http://whatlawyersdo.com/2009/01/30/excellent-post-about-the-weakened-government-oversight-of-the-financial-system/#comments Fri, 30 Jan 2009 23:53:38 +0000 Eric http://whatlawyersdo.com/?p=786 ]]>

I saw an excellent post about how Congress, including Democrats, weakened oversight of the financial system in the 90’s by restricting investor lawsuits. It is located on John Russonello’s blog, and I caught it after seeing it referred to in that venerable blog, Tort Deform.  Here is Mr. Russonello’s opening salvo:

President Obama’s pledge to bring back some meaningful regulation of the financial markets may be more difficult than he imagines. The reason: Senate Democratic leaders not only enabled the deregulation, they were cheerleaders.

In America, unlike other nations, the structure of investor protections against securities fraud stands on two separate legs: Government regulators and private lawsuits. Senator Chris Dodd, Chairman of the Senate Banking Committee, and other Democrats, worked diligently to saw off both legs.

Here is how the people’s representatives took the side of fraud defendants over the fraud victims.

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Lawyer Wins 10-Year Fight for Disability Benefits, and Gets Attorney’s Fees http://whatlawyersdo.com/2009/01/28/lawyer-wins-10-year-fight-for-disability-benefits-and-gets-attorneys-fees/ http://whatlawyersdo.com/2009/01/28/lawyer-wins-10-year-fight-for-disability-benefits-and-gets-attorneys-fees/#comments Wed, 28 Jan 2009 02:24:03 +0000 Eric http://whatlawyersdo.com/?p=782 ]]>

We plaintiff lawyers see it all the time. Disability insurers commonly send injured people to their stable of doctors who say the person is able to work, often in contrast to the opinion of treating physicians, and then the insurance company denies the claim on that basis.  

In a way, it’s kind of like the equivalent of the law enforcement methods of Captain Louis Renault in Casablanca when he says, “Round up the usual suspects.” Meaning, the results are pre-determined and truth and justice are not even a part of the equation.

Recently, however, the Second Circuit penalized First Unum for this practice in the case of Zbigniew Slupinski, a former associate at Weil Gotshal, who was seriously injured on a business trip to Poland in August 1991 when the taxi he was riding in collided with another vehicle. Mr. Slupinski underwent a number of operations, and afterwards suffered severe pain and memory loss that left him unable to work.

He received long-term disability benefits from First Unum until 1995, when they were terminated because two physicians found that he could work full-time since he was able to “sit/stand/walk” for eight hours at a stretch.

Judge Griesa of the SDNY found that the record “overwhelmingly supports plaintiff’s claims that his severe and chronic pain prevents him from engaging in ‘any gainful occupation for which he is reasonably fitted.’” He also said that the doctors used by First Unum were not credible and that their opinions “could not possibly outweigh the numerous other medical opinions confirming Mr. Slupinski’s pain and inability to work.”  But the judge denied an award of attorney’s fees and prejudgment interest.

On appeal, the Second Circuit upheld the award of disability benefits while also awarding attorney’s fees and prejudgment interest to Mr. Slupinski. The Court said that the “ability to sit/stand/walk for a given period says nothing about his ability to concentrate” and that First Unum should not have ignored the “uniform and consistent view of Slupinski’s doctors that his pain was disabling because it prevented him from concentrating.” In short, First Unum had acted in bad faith.

Again, this is just another example of how insurance companies will go to lengths to deny legitimate claims, often relying upon questionable medical opinions. Unfortunately, as demonstrated by this case, many lower courts are reluctant to impose a fee award against insurance companies. If, however, they were willing to do so, as the Second Circuit did here, and if there were stronger consumer protection laws in New York, insurance companies might change their practices.

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Is Help on the Way For Consumers? http://whatlawyersdo.com/2009/01/22/is-help-on-the-way-for-consumers/ http://whatlawyersdo.com/2009/01/22/is-help-on-the-way-for-consumers/#comments Thu, 22 Jan 2009 02:38:45 +0000 Eric http://whatlawyersdo.com/?p=779 ]]>

Now that Obama has become our 44th president, a feeling of excitement has infused the nation. He is young, level-headed, dazzlingly articulate and intelligent, and seems to carry so much promise. But as the excitement begins to wane as his honeymoon gets underway and reality sets in, we should keep an eye out for whether the Obama administration will enact real and meaningful change for consumers.

I believe that there should be an end to, among other anti-consumer practices: 1) jury and class action waivers; 2) mandatory arbitration clauses; 3) damages caps; 4) exorbitant credit card fees and bank surcharges; 5) payday lending industry usurious loans; and 6) National Bank Act preemption which prevents many consumer actions against banks.

Let’s see if this type of change is set to come.

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You’d Think They Would’ve Learned … http://whatlawyersdo.com/2009/01/20/youd-think-they-wouldve-learned/ http://whatlawyersdo.com/2009/01/20/youd-think-they-wouldve-learned/#comments Tue, 20 Jan 2009 01:46:06 +0000 Eric http://whatlawyersdo.com/?p=772 ]]>

We’ve bailed out the banks, we’ve bailed out insurance companies, we’re bailing out the auto industry … you’d think by now that even the most die-hard Libertarians among us would throw up their hands and admit that some regulation of industry is good.

Well, not Richard Epstein, a Law Professor at the University of Chicago, who, in a recent Forbes.com editorial, rails against the Lily Ledbetter Fair Pay Act of 2009 because, well, it inteferes with the precious free market.

His first error is to say that the Obama administration intends to “ratchet up government regulation of labor markets,” and then point to the Ledbetter Act as Exhibit A in its agenda. However, the Ledbetter Act is not accurately called a government regulation of the labor market, but rather a piece of civil rights legislation designed to provide a remedy to women who have suffered from pay discrimination. (Yes, the Act does make a reference to the Fair Labor Standards Act of 1938, but this comes after references to several civil rights acts).   

 

Epstein then says:

The implicit narrative behind the new bill is that discrimination is so woven into the fabric of the employment relationship that once injected, it can never be excised. Labor markets are thus deemed to be incapable of self-correction because of their ponderous lockstep operation year in and year out. It is as if personnel officials never seek to sort out productive from nonproductive employees. Annual reviews, promotions, demotions and reassignments are viewed as some extraordinary events that only rarely alter the original wage path.

Epstein justifies the means by the ends. Okay, let’s assume that acts of discrimination eventually undergo a “self-correction,” whatever that means. As a result, are the rights that the victim has for compensation — for justice — then extinguished? According to Professor Epstein they are.

And that reference to “self-correction,” which is obviously a homage to free markets. Haven’t we learned from the recent economic crisis that “self-correction” is something that can be downright painful and not something to be held up as an ideal? Something that warrants the enactments of regulations?

Lastly, his faith that discrimination that does occur will somehow be sorted out in the natural way of things is either wishful thinking, naive, or uncaring and dismissive. 

Epstein then claims that the legislation will create more waste and unnecessary costs for companies because it will lead them “to initiate expensive programs to reevaluate individual workers to head off the inevitable litigation–at the risk of inviting still more needless litigation.” So, in his view, companies that in the past discriminated against women will suffer because they’ll have to spend time and money reviewing their books to make sure the discrimination is not ongoing. Boo-hoo. Hey, if I am a fair and just employer, I won’t have to have my business undergo a costly and extensive audit to determine if I have discriminated against women. I’ll know that I haven’t.

Then casually, and dare I say callously, Epstein remarks, “How serious is the problem of discrimination that generates the cause celebre?” Well, ask Lily Ledbetter and other women like her who have been treated with less dignity and respect than their male counterparts.  Then comes a shot over the bow of civil rights laws in general:

Do these laws make sense in good economic times as well as bad? The short, if unfashionable, answer is no. The best legal regime for labor relations rests on freedom of contract, where the protection afforded individual workers rests in their ability to go elsewhere if they don’t like their current job.

The convoluted nature of this particular argument is, well, startling.  Epstein is saying that laws that penalize discrimination should not be in effect if … they will hurt the wallet of the entity committing the discrimination. (Notice how I used the word wallet instead of pocketbook?).

Interestingly, earlier in his article, Epstein takes aim at the difficulties he sees in accurately and fairly calculating damages in cases where there has been pay discrimination going on for years: “damage calculations on the residual harm from earlier discrimination will generate large verdicts resting on obscure formulas.” How does such an exacting mathematical approach mesh with the assertion that discrimination laws may exist during good, but not bad, economic times. How exactly are good and bad determined, pray tell? Where is the line drawn? 

And, again, Epstein predicts that the free market will come to the rescue when there is discrimination. Hey, if a company tries to pay women less than men, or will only hire whites and not persons of color, there is justice, after all, he says, and there need not be a penalty, because the victim can go find another job! I think historically there has been a name for that approach: it’s called Jim Crow laws, NINA (No Irish Need Apply),  …

Yes, that approach has worked so well throughout our nation’s history. Just like the free market has.

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Tort Reform is not the Answer http://whatlawyersdo.com/2009/01/19/tort-reform-is-not-the-answer/ http://whatlawyersdo.com/2009/01/19/tort-reform-is-not-the-answer/#comments Mon, 19 Jan 2009 03:14:27 +0000 Eric http://whatlawyersdo.com/?p=768 ]]>

Here is a good op-ed from Leonard Sloane about how tort reform, if enacted, will lift the floodgates on corporate fraud and wrongdoing.

“Tort reform” doesn’t work. Texas is the national model for so called “tort reform,” but medical-malpractice insurance premiums there only went down by 1.2 percent… “Tort reform” leads to unsafe health care. What is even more ironic is the quality of health care in Texas has declined precipitously in the past year.

In condemning the gall and hypocrisy of corporate America, the CBS legal commentator Andrew Cohen recently said the “tort reform” advocated by Wall Street would “unshackle the savageries of corporate America and (leave) individuals less protected against an ever-freer and more predatory market.” That says it all.

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Workers Exposed to Lead Show Impairments http://whatlawyersdo.com/2009/01/19/workers-exposed-to-lead-show-impairments/ http://whatlawyersdo.com/2009/01/19/workers-exposed-to-lead-show-impairments/#comments Mon, 19 Jan 2009 02:59:46 +0000 Eric http://whatlawyersdo.com/?p=764 ]]>

Bloomberg reports that a recent study showed workers exposed to lead experience problems with memory and other cognitive function. In fact, as they reach the age where cognitive function slows, they have greater declines than unexposed workers.

The study was reported in the January issue of Neuropsychology which is published by the American Psychological Association.

I represent children who suffer from lead poisoning as a result of lead paint in their apartments. Children under the age of 6 are at significant risk of suffering cognitive impairments as a result of exposure to lead. The typical defense asserted in litigation is that the child’s deficits were genetic or caused by other factors.

The fact that this study shows that adults exposed to lead suffer cognitive impairments supports the claim that children exposed to lead are at high risk of suffering injury.

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United Health Must Overhaul its Databases http://whatlawyersdo.com/2009/01/19/united-health-must-overhaul-its-databases/ http://whatlawyersdo.com/2009/01/19/united-health-must-overhaul-its-databases/#comments Mon, 19 Jan 2009 02:35:21 +0000 Eric http://whatlawyersdo.com/?p=760 ]]>

The New York Attorney General has entered into a settlement with UnitedHealth Group , the largest insurer in New York, concerning the method it used to calculate reimbursement for out-of-network services.

When an insured goes out of network, he receives a bill from the provider and the insurer customarily pays a percentage, say 70 or 80%, of what it has determined to be a usual and customary rate (UCR) for the service. 

In determining the UCR, United Health relied on data provided by a company named Ingenix that it owned and controlled. The result was that it determined low UCR’s and insureds were routinely had to pay a larger share of their medical expenses than they should have.

Under the settlement, United Health will pay $50 million to finance the creation of a new database. It will not have to reimburse its insureds but there is a class action pending.

The New York Times reports:

Mary Jerome, a professor at Columbia who was found to have ovarian cancer in 2006, said she had been left with unreimbursed medical bills amounting to tens thousands of dollars. Her complaints to the attorney general’s office helped spur the investigation.

Ms. Jerome, who said she had been treated at Memorial Sloan Kettering, in large part because her primary care physician recommended the hospital, expected she would have to pay no more than her $3,000 deductible for going out of network. But she said she had soon been swamped with bills that left her $70,000 to $80,000 in debt.

She found herself trying to decipher bills with more than 200 line items.

“You’re lying there in a morphine grip with someone draining your lungs, trying to figure this out, and you just cannot,” she said. “It cannot be done.”

Sick people poring over indecipherable medical bills… universal healthcare, anyone?

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Business Quietly Applauds Sunstein Appointment http://whatlawyersdo.com/2009/01/14/business-quietly-applauds-sunstein-appointment/ http://whatlawyersdo.com/2009/01/14/business-quietly-applauds-sunstein-appointment/#comments Wed, 14 Jan 2009 03:06:39 +0000 Eric http://whatlawyersdo.com/?p=751 ]]>
Cass Sunstein

Cass Sunstein

Cass Sunstein has been appointed to run the OMB Office of Information and Regulatory Affairs, which reviews major federal rules. While business has quietly applauded this move, liberals are worrying that Sunstein will not sufficiently support the rescinding of pro-business regulations enacted by the Bush administration or champion new ones pertaining to health and safety.

Sunstein, a prolific author and public intellectual, was a colleague of President-elect Obama’s when the two were both law professors at the University of Chicago.   

“He is smart and prolific, but he is a true believer in cost-benefit analysis,” said Rena Steinzor, a University of Maryland law professor and president of the Center for Progressive Reform, a liberal academic think tank in Edgewater, Md. “He would not have found an arsenic regulation to be justified. This makes him extremely conservative on regulatory issues.”

Read the full article by Cindy Skrzycki in the Washington Post here.

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New Solicitor General Lacks Appellate Experience, But Does It Matter? http://whatlawyersdo.com/2009/01/13/new-solicitor-general-lacks-appellate-experience-but-does-it-matter/ http://whatlawyersdo.com/2009/01/13/new-solicitor-general-lacks-appellate-experience-but-does-it-matter/#comments Tue, 13 Jan 2009 04:12:50 +0000 Eric http://whatlawyersdo.com/?p=746 ]]>

Elena Kagen, the well-respected Dean of Harvard Law School, has been nominated to be Solicitor General in the Obama administration. But is she qualified seeing that she has never argued a Supreme Court case, or for that matter, a single appellate case?

An article published in Legal Times discusses this issue and includes interviews with Supreme Court veterans and former SG’s who mostly believe that it doesn’t matter much.

Hey, long-time Manhattan District Attorney Robert Morgenthau has never tried a case. And did you know that the former head of FEMA, Mike Brown … well, never mind.

But whether her lack of experience dishing up arguments before appellate judges matters makes for interesting discussion. 

Having argued before appellate courts, I can understand the viewpoints of the interviewees. Conducting oral argument essentially involves the ability to be 1) intelligent, 2) articulate, and 3) able to think on one’s feet. It does not, in other words, require well-honed skills with which seasoned trial lawyers are equipped and are cultivated over a period of time. For example, oral argument before an appellate court can be learned more quickly and more easily than the art of cross-examining a defendant doctor. And no one would claim that the most intelligent law professor could try a case with the same skill as a leading trial lawyer.

As a professor and dean of Harvard Law, Kagan has engaged in public discussion and no doubt verbally jousted with legal brainiacs. And given her position and how much respect she has garnered at HLS, she is no doubt a brainiac herself. She is ready to stand in front of the Supremes. Or so the argument in her favor goes.

Yet, normally for such a high-powered professional position you assume there is some relevant past experience. Imagine you are the president of a corporation and a very important case involving your business is going to the Supreme Court. It’s hard to imagine you wouldn’t hire an advocate who has been before that court at least once and wouldn’t consider a rookie. The SG is in charge of the Supreme Court cases involving the government and is often expected to argue the most important ones. Applying the same logic, don’t you want an SG who has been in the trenches?

It was said in the article that the SG has experienced staff to rely on. But there is a learned art to drafting briefs that, no matter how bright you are, only comes with experience. Wouldn’t you want your SG to have that experience? To be the most competent in that area instead of having to rely on underlings.

On the flip side, the SG does not spend all of his or her time drafting briefs and arguing before the Supreme Court. Maybe being an seasoned appellate advocate, therefore, is not of utmost importance. Kagan apparently has been very successful at the helm of HLS. Maybe that quality would serve her well as SG. After all, she will be in charge of the office. On the other hand, someone with no people skills or any idea how to run an organization, no matter how good he or she performs at oral argument, could be a disaster if put at the helm of the SG’s office.

All in all, I say Kagan is probably a good pick. Will she turn out to be a good SG? Only time will tell.

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